Another Judicial Victory for Authority of the States : Sharply divided court’s ruling raises disturbing questions

The narrow issue of the U.S. Supreme Court’s decision centered on whether an Indian tribe could sue a state over gambling operations. But the import of the Wednesday ruling hits squarely on the very large issues that motivated creation of the Union: the power of the states in relation to the federal government and the limits of individual power within that federalist scheme.

With this decision, Congress’ power to address problems of such obvious federal interest as violence at abortion clinics, narcotics, “deadbeat dads,” hazardous waste dumps or pistols in the hands of ex-felons may be in question. That’s why the 5-4 decision generated excoriating dissents within the court and widespread concern outside its solemn halls.

The case involved the constitutionality of a suit brought by the Seminole Tribe against the state of Florida under the 1988 federal Indian Gaming Regulatory Act. The Seminoles sought to force Florida to negotiate the terms of a tribal-state compact for a casino on Seminole land. The gaming law allowed tribes to sue states in federal court for failing to negotiate in good faith over the operation of gambling casinos on tribal land.

Chief Justice William H. Rehnquist, writing for the majority, said that this portion of the law was an unconstitutional incursion on state sovereignty. Rehnquist relied on the obscure 11th Amendment, asserting that it generally bars Congress from authorizing private parties to sue the states in federal court without the states’ consent except for civil rights suits that derive from 14th Amendment claims. Yet the 11th Amendment was added to the Constitution in 1795 specifically to prevent citizens from suing states in federal court to collect unpaid debts from the Revolutionary War. It provides that “the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”

Most federal laws are enforced either through direct regulation by federal agencies or through conditioned grants to the states. Neither of these mechanisms is affected by the ruling. But the decision could limit suits by individuals to compel state compliance with federal environmental protections, among other things. That would be a major loss to individuals who often have no other way to push recalcitrant state officials to act in accordance with federal law.

Moreover, the decision has generated immediate and intense heat because it marks the third time in five years that the high court has broadly strengthened the power of the states against the federal government. This court’s intention to rewrite historical federalist relationships is unmistakable. Last term, for example, the same 5-4 majority held that Congress cannot pass laws dealing with interstate commerce--in this case the Gun Free School Zones Act of 1990--unless the activity at issue “substantially affects” such commerce.

While Rehnquist turned to the Founding Fathers for precedent in Wednesday’s decision on Indian gaming, Justice David H. Souter, author of one of the two voluminous dissents, dismissed Rehnquist’s assertions and reasoning out of hand. He blasted the majority’s decision as “insupportable either in the text of the Constitution or on the original understanding of its framers and ratifiers.” Souter termed the majority’s decision “fundamentally mistaken .J.J. [and] simply irresponsible.” We find his arguments persuasive.